Thursday's Supreme Court decision in Citizen's United v. FEC is perhaps the most activist decision of the Supreme Court since Bush v Gore, and might be just as harmful to the nation.
There is a way out of this mess, but it will take quick action.
The Court struck down limits on corporate expenditures in elections, insuring that -- in the name of free speech -- the speech of those of us who are real, breathing humans will be drowned out by the blather of Walmart, Goldman Sachs, ExxonMobil, and other for-profit corporations. In the Court's view, there is no difference between the speech rights of humans and the speech rights of artificial entities created to make money.
The Court struck down its own precedent, ruled a portion of the McCain-Feingold election law unconstitutional, and overturned limits on corporate electioneering that have been a part of federal law for more than a century. The Court did so in a case in which neither party had asked for such rulings. Rather, the Court itself asked the parties -- after they had already been to the Court once -- to re-argue the case for the express purpose of giving the Court the opportunity to overturn settled law.
Anytime the Court strikes down a law on constitutional grounds, it is difficult to un-do. For this reason, the Court has long claimed the importance of restraint. The Court has said it will defer to the political branches if the constitutional question is a close one, and the Court has also said that it will not go out of its way to decide constitutional questions it can avoid.
The Court offended all of these notions in its opinion. It reached out to decide constitutional issues it did not have to decide, overturning careful election regulations decided by bipartisan coalitions in Congress.
There are not many options for redressing the mistakes of today's opinion. (Rick Hasen lists six, none of which he thinks will work.)
But there is one possibility.
Corporations are created ("chartered") by states, and such chartering gives them special abilities to make money. Limited liability and unlimited life are two of the most powerful benefits so bestowed.
In my view, the benefit of incorporation itself can be conditioned on the waiver of the "right" of corporations to participate in political campaigns. The Court has often upheld the ability of government to condition benefits on the waiver of rights. Admittedly, this gets complicated fast, but the basic rule is that if the government gives you something, it can limit the uses you make of it.
So if the limits on campaign expenditures of corporations were not a part of election law but a part of corporate law - then the limits would be much more easily defended.
The change would be straightforward. Now, most states charter corporations "for any and all lawful purposes." The only change required would be for the statute to add "except that any entity created by this charter shall not have the power to expend money to influence the outcome of any local, state, or federal election."
But these changes would have to come fast. Starting today, corporations can spend as much money as they want to skew elections at every level of government. Efforts to amend corporate statutes to make it clear that corporations should stay out of politics will not be greeted warmly by the corporate elite. If these amendments are delayed until most elected officials owe their jobs to corporate benefactors, then we can kiss these changes -- and perhaps genuine democracy -- goodbye.
Please also press for a clear and lasting separation of corporation an State to be added to the US Constitution, we need 2/3 of the state legislatures to call for a convention.
In the mean time, petition capitol hill,
movetoamend.org dontgetrolled.org freespeechforpeople.org
I'm spreading this far and wide to all my reps.
Thanks
In Humboldt County we also know what it's like to be pushed around by large corporations. In 1999 Wal-Mart spent $250,000 in an attempt to change Eureka's zoning laws. In 2004 Maxxam spent $300,000 trying to recall our District Attorney after only three months in office. The price to fight these giants and defend our democracy came at a tremendous cost.
Unelected judges and corporate lawyers claim that corporations are legal "persons" with the same rights as human beings. "Corporate personhood" weakens people's rights to free speech and equal protection. Our Founding Fathers never intended corporations to have this kind of power.
Any corporation rich enough to sue can claim that laws protecting workers, the environment, communities, or small businesses violate their "rights."
Large corporations have used their "personhood" status to gain access to the ballot box and spend obscene amounts of money on push polling, paid petitioners and high-priced consultants.
It's time for a "T" Party of our own...
It's time for Measure T!
Measure T will protect local control by ensuring that only individuals, local organizations and local businesses can make financial contributions in Humboldt County elections.
http://www.votelocalcontrol.org/
I think it is already to late. Most if not all elected officials owe their jobs to corporate lobbyist and the like.
They should be like Nascar and where the logo of their sponsors on their Jackets.
Any further thoughts on this?
I would argue that, since a constitutional amendment is impractical (certainly in the time available), the only long-term solution is to have the Court reverse itself. How, since conservative majority are not likely to change their minds and all appear to be in reasonable health?
Increase the size of the Court from nine to eleven, thus giving Obama the opportunity to appoint two new justices who, with the original minority of four, would now represent a new majority of six. This would be perfectly legal since Article III gives Congress the power to set the size of the Court.
As for the inevitable filibuster, threaten to use (or actually use if necessary) the :nuclear option" outlined by the Republicans in 2005.
This solution could be implemented very quickly and only requires simple majorities.
Under normal circumstances, I would argue against packing the Court and the nuclear option, but these are not usual times and the alternative of doing nothing is unacceptable.
I kinda like the idea of officials wearing logo attire for the biggest companies funding them, I'm tired of the suit and tie look anyway.
Fanned